ATF Unhinged: Prosecutions Made Up Out of Whole Cloth – You Might Be Next…

Since the Law Vegas shooting and what some contend has been a takeover by Department of Justice (which in some contexts appears to be accurate), ATF has begun internally reversing prior determinations and making up new interpretations of law, in the absence of informing the Firearms Industry or the public of these reversals and/or new interpretations. More disconcerting, this mentality has now seemingly infected certain U.S. Attorney Offices, which is alarming to say the least.

Although I cannot disclose all of the occasions where ATF has recently reversed its prior determinations or devised a new interpretation of the law or regulation, I can disclose a recent prosecution, of a veteran, where ATF devised a new interpretation out of whole cloth and was successful in convincing the U.S. Attorney’s Office for the Northern District of Ohio to prosecute. The case is U.S. v. Wright, 3:18-CR-162 and it should have the entire Firearms Community alarmed.

Although many of the documents have been sealed by the Court (that should tell you a good bit already), the superseding indictment is publicly available and suggests that Mr. Wright had an unregistered short-barrelled rifle (SBR) that was not registered in the National Firearms Registration and Transfer Record (NFRTR). Regardless of whether you believe the National Firearms Act is constitutional or appropriate, at the time of writing this article, the courts have not yet found it to be unconstitutional and if merely inappropriate, one’s proper recourse is to seek a statutory deletion or revision. Thus, the possession of an unregistered SBR is unlawful. So, why is this case concerning? Unfortunately most of the informative documents have been sealed…that is, except for the Government’s Motion in Limine. (For those who don’t know what a motion in limine is, it is a motion filed by a party which asks the court for an order or ruling limiting or preventing certain evidence from being presented during a trial).

When you review the Motion in Limine, you quickly learn that the Government is seeking to preclude ATF FATD (Firearms and Ammunition Technology Division) determinations from being used in any way during trial. These determinations appear to have been part of a discovery dispute, which is also sealed and is evidenced by the Government’s statement that “[t]he Government produced the letters under the protection of a protective order that the Court authorized on August 1, 2018.”. For the reasons that follow, I find it extremely comical that the Government actually contended that “ATF FATD letters at trial creates a grave risk of confusing the issues and misleading the jury,” but I digress…for now.

We quickly learn from the Government that:

The critical issue in this case will not be possession, registration (or lack thereof), or barrel length. Ultimately, the primary issue in dispute at trial will be whether or not Kelland Wright’s firearm meets the definition of a “rifle,” that is a firearm designed to be fired from the shoulder, see 26 U.S.C. § 5845(a). Part of this issue will center on the implications modifications that Kelland Wright made or had made to the firearm, including the addition of an extension piece to the rear of the firearm.

Hmmm, so now we know that the issue is whether the piece added to his Ar-15 pistol constituted a “stock” or not. The Government further contends:

Wright’s expert, Richard Vasquez, is expected to testify that the extension piece functions as a cheek rest. The Government’s expert, Firearms Enforcement Officer Eve E. Eisenbise, is expected to testify that the extension piece makes the firearm designed to be fired from the shoulder. Officer Eisenbise is an employee of the ATF FATD. Richard Vasquez formerly was employed by the FATD.

…

The relevant issues at trial relate to the specifics of Wright’s firearm, an AR pistol platform that was modified with an angled foregrip and collapsible stock.

Now, everything starts to come into light. The Government is contending that an extension piece that is designed as a cheek rest is actually a stock or if not, Mr. Wright had a vertical foregrip on his pistol. (We call this roping a heifer, where the Government attempts to contend that no matter how you classify the situation, you have violated some law). Now, some of you are probably saying, hold on, ATF previously issued determinations – such as in relation to the Thorsden determination request letter and ATF’s response – that cheek rests and other devices, which were not designed to be shouldered, are not stocks. (For more discussion on cheek weld determinations, see our blog article Ringing In the New Year ATF Style). And they have issued numerous determinations – such as the one regarding the Magpul Angled Fore-Grip – that angled foregrips are not vertical pistol grips. Yep, but that didn’t stop the ATF and the U.S Attorney’s Office from prosecuting Mr. Wright and seeking to preclude the jurors from seeing or hearing of the determination letters, even though, the Government never once contended that Mr. Wright actually shouldered the cheek weld extension or utilized the angled foregrip.

For those interested in what the products involved actually were, you can discern them from the Certification of Exhibits, which thankfully wasn’t sealed. And here is the docket.

Thankfully, after only deliberating for a very short time over lunch, the jurors came back with a verdict of not guilty. However, Mr. Wright has likely incurred tens of thousands of dollars of attorney fees and costs fighting for his freedom – all because ATF decided that it would invent a new interpretation of the law and it did so without notifying the Industry or the public. Let that sink in for a couple minutes…

If you are being unjustly prosecuted due to an alleged violation of the Gun Control Act or National Firearms Act, or are seeking to obtain a determination regarding the lawfulness of your product, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

Published by Joshua Prince, Esq.

With our 2nd Amendment rights being attacked at both the Federal and State level, and the ATF (Burea of Alcohol, Tobacco, Firearms, and Explosives) trying to close down FFLs (Federal Firearms Licensees) for minor infractions while making FFLs the scapegoat when the ATF's records are inaccurate, I want to take this opportunity to introduce myself. I am one of only a handful of attorneys across the US that practices in the niche area of law known as firearms law. I decided to concentrate my legal practice on firearms law not only because I am a shooter and firearms enthusiast, but also to ensure that our inalienable Right to Keep and Bear Arms is never encroached upon.
I handle cases at the Federal and State level for both FFLs and individuals. At the federal and state levels for individuals, I actively defend the 2nd Amendment of the US Constitution and Section 21 of the PA Constitution, as well as, help individuals with:
- License to Carry Firearms Denials;
- Challenges to Erroneous PICS Denials;
- Relief from Firearms Disabilities;
- Estate Planning Advice;
- Gun/NFA Trusts; and
- 42 USC 1983 Actions for Deprivation of Civil Rights
At both the state and federal levels, I represent FFLs and SOTs throughout Pennsylvania and the US regarding:
- ATF Compliance Inspections;
- Warning Letters and Hearings;
- FFL Revocations;
- Corporate Structure Advice
- Indoor/Outdoor Range Implementation; and
- Forfeiture Proceedings
In following my love for firearms and firearms law, I have taught several Continuing Legal Education (CLE) seminars on Firearms in Estates and Trusts and Firearms Law 101 for several Bar Associations, including Berks, Cumberland, and Dauphin Counties. I also planned and taught several Firearms in Estates CLE classes for the Pennsylvania Bar Institute (PBI).
While at Widener Law School, I was a member of the Widener Law Journal. I wrote an article on the Inaccuracy of the National Firearms Registration and Transfer Record (NFRTR). I also had an article published on Fee Disputes in Workers Compensation cases in the Widener Law Journal, Volume 18, No. 2.
You can often find me posting on several internet forums, including Subguns, Uzitalk, AR15, and PAFOA. I also hold PA Firearms Law classes for local ranges to inform the public on the firearm laws of the Commonwealth.
Following in my father's footsteps, I am also a Board member for the Pottstown Police Athletic League (PAL).
View all posts by Joshua Prince, Esq.

With this situation in mind, I recommend that anyone who has an arm-braced gun also equip it with a pistol grip mounted to the lower that incorporates a storage compartment. That way you can carry copies of the ATF letter(s) in a Ziplock bag stowed inside the grip at all times. That way, if there is ever a legal dispute with the ATF, that letter will be a de facto part of the chain of evidence. An agent separating that letter from the gun taken as evidence would be solid grounds for Title 42 Sec. 1983 (Deprivation of Rights) civil lawsuits–against both the agency and against the agents, as individuals.

NFA “defines” sawed off shotgun IF it was designed and built to be fired from the shoulder, But if it never was designed or intended to be shoulder fired a 13″ barrel on a pump or semi-auto shotgun is “not an NFA” Apparently the first case of an NFA violation was in Arkansas and the federal judge said the entire law was unconstitutional and dismissed Mr. Miller.
In 1939 the SCOYUS did not uphold the MILLER case, rather it remanded the case to the trial court to take evidence that the Supreme Court could examine.
That remanded trial has never happened and the ART and DOJ HAVE BEEN PRETENDING that the case is settled.
Maybe Justices Thomas, Gorsuch, Kavanaugh, Alito and Roberts can finish MILLER.

Nope. Price of being a citizen of a “free country”.
If you are lucky enough to be found not guilty by a jury you still pay the cost of your defence. In the meantime you also pay the cost of your prosecution through taxation,fines and fees which we have all come to consider as normal and natural.
If you are in a position to qualify for a public defender be aware that greater than 90% of prosecutions are “plea bargained” and don’t go to trial. If you have a public defender they are going to talk you into making a deal not going to trial.
In the US we get as much justice as we can afford to pay for.

He does have the option to counter-sue the government, but unfortunately it will come entirely at his expense with no guarantee that he will win a dime. Especially when you consider the amount of money and resources the government has to defend itself against private lawsuits. Best he could hope for would be to settle out of court…but how much would it cost him, and would it even be worth it in the end? Worst part is, the wanna-be dictators that prosecuted him in the first place would be completely unaffected by the lawsuit. The case would be handled by a few faceless bureaucrats in the ATF’s personnel headquarters and most likely those involved in the original case would never even hear about it. May even be retired with fat pensions by the time the guy ever saw the settlement.

I believe the NFA needs to be abolished and I think anyone *should* be able to shoulder anything they want with any barrel length they want. That being said, the defendant in this case was using a brace with the arm attachment removed and had a pad attached to the end of the brace which clearly violates the law.

Ok, so he did modify the brace. That makes more sense as to why they would try to make a case out of it. This could actually help us. Even a modified brace to accommodate shouldering won’t get to a conviction. They might give up all together on this. It is pretty ridiculous especially on a low recoil gun like an AR15. But I agree, the NFA should be abolished. This whole SBR definition is nonsense.

To the folks in Americans who believe in the 2nd Amendment we all need to get together and go after the ATF and other groups for making these ridiculous laws number one and number two every month depending on who’s in office and each state or County or country laws are interpreted to suit their needs and their missions or their agendas. Here in Florida Gilliam could be the next governor and if that’s the case gun owners could be in for a very sad surprise and not just gun owners but to the American citizens and immigrants who have entered this country legally are also in trouble when you go look for a job now you have to speak Spanish they say you have to be bilingual well if that’s the case then how does an American get a job if you have to be bilingual it doesn’t make sense they are catering to not only illegal citizens but foreigners and folks that don’t belong in this country have more rights than the American citizens do somewhere somehow this has to stop this is going way too far. But I’m done ranting and raving somebody urinated in my cornflakes this morning

Wow color me surprised.
The defendant had a public defender and won!
Also according to CCW article above BATF engaged in the usual fuckery of obfuscation and confusion.
The article mentions that length of pull was at issue. I certainly didnt know about THAT little tidbit. 13.5 inches is the magic number appearently. Measured length of pull was 13.75 using a diagonal measure. ( contrary to usual horizontal to stock measurment).
If I recall it was another .25 of an inch measurement under dubious circumstances that led to Vickie Weaver getting shot in the face.
The good news was the defendant in the Ohio case had a pistol that had a 13.5 inch length of pull when measured horizontally from the trigger.

Has anyone done a Bar complaint and an internal DOJ complaint for this clear violation of the duty to provide (not conceal) potentially exculpatory evidence? This looks like just another case of DOJ’s blatant lack of respect for the law and rules of evidence/professional conduct. These AUSAs need to be disbarred, as does every single person in their chain of command who did not impose control on this behavior. If I did this in my role as a prosecutor I could count on being unemployed and disbarred.

As I recall, I have had one in the last 25 years, and it was knowingly frivolous and malicious, compounded by the fact that Bar counsel was and is a dullard who had no idea of the legal issues involved. (I actually was deposed, along with 2 others in the office who were subjected to the same complaint, and it was readily apparent that Bar counsel had not clue at all. I have no faith in our state bar at all. Biased and incompetent at best.) It in fact involved the mandate to disclose such potentially exculpatory evidence that we had learned about a dirty cop. He sued us over our efforts to provide it to defense counsel and then did a Bar complaint. It was frustrating. Many of my friends have been the subject of BS complaints by defendants, almost none which get past the first scrutiny by the Bar. I had one in another state, from a guy who pled guilty to offenses establishing every element of the original charges (a violent DV) after I left the office post election. Also frustrating, but it went away pretty quickly, unlike the one above.

DJ has had a long term problem with this conduct, and is generally not considered credible or ethical by many lawyers I respect.

So now you know why there has been no BAR or internal DOJ complaint. They go nowhere and have no effect. A single BAR grievance will, essentially, do nothing. They will look into it and find that their actions did not rise to the level of misconduct… And we have seen multiple instances where a DOJ investigation have found, at most, a low level scapegoat (it was that paralegal that caused all the problems so that paralegal has been fired, now everything is back to the most moral of good working order).

This is little bit unnerving. Specially since I am an Immigrant. I recently purchased Stribog 9mm pistol and intend to use the SIG folding pivoting brace. Should a write to ATF and get an approval with my name on it or just keep the original letters with the pistol as Jim Rawles back in October 29, 2018 ?

I agree with Michaelzwilliamson. I’m an immigrant as well and I have fewer rights as well even though I have been a law abiding citizen for over 40 years.